Family Law is one of those areas which is constantly being changed by legislation. Current changes take into account that children are now considered to be the most important class of individual to be protected when parents separate and/or divorce. The Family Law Act 1975 specifies that the object of the Act is "to ensure that children received adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children". The central facts in this area are what is in the best interests of the child and both parents are to have a meaningful involvement in the child's life. The new concept of equal shared parental responsibility does not necessarily mean that both parents will necessarily be given equal time with their child/children. Equal shared parental responsibility contemplates the word substantial and significant time with the parent. The caveat on equal shared parental responsibility contemplates what is reasonably practicable and where it is not then the question becomes one of substantial or significant time with the parent.
It is important to remember that these reforms put children first and that they are entitled to be protected from harm. Although equal shared parental responsibility is contemplated this will not occur where children are put at risk. Parents are given the opportunities to work together to determine what is in the best interests of the child to avoid conflict in court. Children are to be protected from violence or abuse. Equal shared parental responsibility is not about spending equal time with parents but rather parents being given the opportunity to participate equally in decisions which affect their child/children's futures. Sharing time with parents is part of it but more importantly is the need to protect children from harm. Where violence or abuse is a threat then equal shared parental responsibility no longer applies.
Current changes to the Family Law system commenced on 1/7/06 and will be phased in over time. The new system relies upon co-operation from separated parents working out arrangements with children so that they don't have to go to court. A parenting plan may be entered into by parents which sets out the parenting arrangements for children provided it is in writing, dated and signed by both parents. A parenting plan provides for the structured responsibilities of parents as they involve children including the practical considerations of a child's daily life. Parenting plans are to be voluntary so they can be changed at any time provided both parents consent. Parenting plans are not legally enforceable but they will be taken into account by a court when making a parenting order in relation to a child. The extent to which parents have complied with their obligations with children will also be considered by the court.
From mid-2007 parents will be required to attend family disputes resolution sessions in an effort to resolve issues and disputes before taking a parenting matter to court.
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Author(s):Pheba Netto LL.B. (Hons)